DECISION OF TRIAL CHAMBER I ON THE REQUESTS
OF
THE PROSECUTOR OF 12 AND 14 MAY 1997 IN RESPECT OF THE
PROTECTION OF WITNESSE

The Office of the Prosecutor:

Mr. Mark Harmon
Mr. Gregory Kehoe
Mr. Andrew Cayley

Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman

. On 12 May 1997, the Prosecutor submitted
to the Trial Chamber a "Request for in camera hearing and for additional
protective measures in respect of the identities of witnesses and the statements provided
to the Defence" (hereinafter the "Request of 12 May 1997"). On 14 May 1997,
the Prosecutor filed a second Request "for an emergency stay of execution in respect
of the production of witness identities and witness statements" (hereinafter the
"Request of 14 May 1997). General Blaskics defence counsel (hereinafter
"the Defence") in a consolidated opposition dated 16 May 1997 (hereinafter
"the Response") responded to the requests. The Trial Chamber heard the parties
at a hearing on 23 May 1997.

The Trial Chamber will first analyse the
arguments of the parties and then discuss all the contested points of fact and law.

I. ANALYSIS OF THE ARGUMENTS AND CLAIMS OF THE PARTIES

2. Further to the disclosure on 9 May 1997
of Mr. Stipe Mesics testimony in two Croatian newspapers - the "Vecernji
List" the "Vjesnik", in a request dated 12 May 1997, the Prosecutor
requested that the Judges of Trial Chamber I adopt a set of additional protective measures
in respect of the identity of the witnesses and the statements disclosed to the Defence1. Four types of measures are requested. Firstly, that the
Defence be required to maintain a log which will identify the name, position and address
of each individual to whom a copy of a witness statement will be provided. Second, that
those individuals not be permitted to make copies of the statements - under pain of being
held in contempt of the Tribunal - and that they return them to the Defence as soon as
they are no longer required. Third, that the Defence ascertain whether those individuals
have made copies of the said statements or permitted them to be made. Lastly, that it
ascertain the identities of all persons who have received copies of those statements and
provide this information immediately to the Trial Chamber.

The Prosecutor also requested that the
terms of the Decision of Trial Chamber I of 2 October 1996 in respect of the
non-disclosure of the identity and the statements of the witnesses be expanded to all the
witness statements which have been and which will be provided to the accused and his
counsel.2

The Prosecutor deemed furthermore that the
Trial Chamber should conduct a full examination of the circumstances surrounding the
receipt and dissemination of Mr. Mesics statement3.

3. In its Request of 14 May 1997, the
Prosecutor requested that the Trial Chamber issue an emergency stay of execution relieving
her of further discovery production to the Defence pending a hearing and decision, if any,
on her Request of 12 May 19974.

4. The Defence insisted that no form of
protection for the identity of the witness Stipe Misic had been requested by the
Prosecutor and ordered by the Trial Chamber5. It objected to
any additional protective measures for witnesses as suggested by the Prosecution and
stated that they had no legal basis6 or that they amounted to
a "witch hunt"7.

In addition, the Defence strongly objected
to the request for an expansion of the effects of the Decision of 2 October 1996
"regardless of where they reside and whether disclosure of their identities would
create any danger or significant hardship for them8." In
this respect, the Defence recalled that the measures taken further to the Decision of 2
October 1996 were directed at ensuring the protection of the witnesses living in a
particularly unstable region, that is, central Bosnia, whose lives were thus in danger9.

5. The Defence also opposed the temporary
suspension of the Prosecutors discovery obligation so that it would not suffer
additional delay in the preparation of its case10.

II. DISCUSSION

6. The Trial Chamber will first deal with
the Prosecutors request for an examination. It will then review one by one the
issues related to the expansion of the terms of the Decision of 2 October 1996 on the
protection of witnesses to include all the statements already provided to the Defence and
to the additional protective measures requested by the Prosecution. Lastly, it will
consider the Request of 14 May 1997 "for an emergency stay of execution in respect of
the production of witness identities and witness statements".

A. The Examination

7. As regards the disclosure of the
identity and statement of the witness Stipe Mesic to two Croatian newspapers, the Trial
Chamber notes that the said witness was not covered by any protective measures insofar as
no request was made that he be covered and no decision granting such request was ever
issued. In this respect, the Judges point out that the terms of the Decision of 2 October
1996 regarding witness protection did not apply to him since the Decision was directed
only at persons residing in central Bosnia.

Furthermore, the Judges state that it
would be extremely difficult to determine who is responsible for such disclosure.

The Trial Chamber considers finally that
the start of the trial should not be further postponed.

The conclusion of the Trial Chamber is
that conducting an examination into the circumstances under which the identity and
statement of the witness Stipe Mesic were disclosed would therefore be inappropriate and
consequently rejects this request.

B. Protective Measures

8. The Trial Chamber wishes first to
emphasise its concern for ensuring real protection for victims and witnesses. In this
respect, it notes that the Statute affirms this principle and that the Rules of Procedure
and Evidence (hereinafter "Rules") state how this shall be arranged. Article
20(1) of the Statute states that the protection of victims and witnesses must be given
"due regard" and Article 22 of the Statute invites the Judges to provide this
protection in their Rules. Sub-rule 69(A) of the Rules therefore permits the
non-disclosure before the trial of the identity of a victim or witness who may be in
danger until such a witness is brought under the protection of the Tribunal. Sub-rule
75(A) of the Rules states that a Judge or Trial Chamber may "order appropriate
measures for the privacy and protection of victims and witnesses". Lastly, Sub-rule
79(A)(ii) of the Rules asserts that "the press and the public may be excluded from
all or part of the proceedings" for various reasons, including the wish to avoid the
disclosure of the identity of a victim or witness.

Furthermore, the Trial Chamber must ensure
that the rights of the accused enjoy "full respect" (Article 20(1) of the
Statute). It must therefore guarantee that the protective measures are compatible with the
right of the accused to a fair and public" trial (Article 21(2) of the Statute) and,
more particularly, with his right to prepare a proper defence.

The Judges also recall their sovereign
right to evaluate those measures which they consider the most appropriate to ensure this
protection11 and emphasise - as did Trial Chamber II in the
case The Prosecutor v. Tadic12 - that the list
of measures provided in Rule 75 of the Rules is not exhaustive.

9. As regards the steps already taken by
both counsels for the Defence - who declared that they were very aware of the need to
guarantee appropriate protection for the witnesses13 - to
ensure the safety of the confidential information transmitted to them by the Prosecutor,
the Trial Chamber notes the measures taken by the parties to ensure, as they stated during
the hearings14, that the confidential documents are
protected. According to Mr. Hayman, "anyone who is working with me on this matter has
to keep the case materials under lock and key. (...) In addition, the number of people
working on the matter consulting with me is limited. Anyone who works with me, including
technical support people, such as computer persons, have been personally advised by me of
the Courts Order regarding the 87 witnesses and to the extent summaries or extracts
of that material are made for work within my office there is a caption which I put on this
material which states: "Unauthorised disclosure of the material herein is subject to
order of contempt by the Tribunal15

10. In respect of the further measures
which the Prosecutor has requested, because of the disclosure and publication to the
Croatian press of Mr. Mesics statement and because of the general conditions
currently prevailing in the territory of the former Yugoslavia, the Trial Chamber is
extremely concerned about the security of the witnesses who may be called to make a
statement before it during the trial.

It therefore deems that the accused, his
counsels and their representatives must not disclose to the public or to the media the
name of the witnesses from certain areas of the former Yugoslavia or any information which
might make it possible to identify them, unless this is absolutely necessary for preparing
the defence.

The Trial Chamber also considers that
additional measures must be implemented by both parties in order to guarantee satisfactory
protection of the witnesses. It therefore orders both the Prosecution and the Defence to:

1) - maintain a log indicating the name,
address and position of each individual who has received a copy of a witness
statement as well as the date such statement was given and to submit the log to the Trial
Chamber whenever the Trial Chamber so requests;

2) - instruct those individuals who have
received a copy of the statements not to reproduce them - under pain of being held in
contempt of the Tribunal - and to return the documents as soon as they are no longer
required; and

3) - verify that those individuals comply
strictly with the above orders.

Lastly, the Trial Chamber recalls that if
the Prosecutor or Defence wish for other measures, they must present to the Trial Chamber
a specific request containing the reasons therefor.

C. Suspension of the disclosure obligation

11. Although suspension of the obligation
to disclose statements has de facto been in effect ever since the Prosecution filed
its Request of 14 May 1997, the Trial Chamber considers it appropriate to order the
immediate resumption of disclosure, in accordance with the above-indicated measures, the
terms of Rule 66 of the Rules and the Decision of 27 January 1997.

III. DISPOSITION

12. FOR THE FOREGOING REASONS,

Trial Chamber I

Ruling inter partes and
unanimously,

REJECTS the request for an
examination;

ORDERS that, as of the date of this
order, the accused, his counsels and their representatives not disclose to the public or
to the media the name of the witnesses residing in the territory of the former Yugoslavia
or any information which would permit them to be identified, unless absolutely necessary
for the preparation of the defence;

ORDERS the Prosecutor and the Defence
to maintain a log indicating the name, address and position of each person who has
received a copy of a witness statement as well as the date it occurred and to submit the
log to the Trial Chamber whenever it so requests;

ORDERS the Prosecutor and the Defence
to instruct those persons who have received a copy of the statements not to reproduce them
- under pain of sanction for contempt of the Tribunal - and to return the said documents
as soon as they are no longer required;

ORDERS the Prosecutor and the Defence
to verify that those individuals who have received a copy of the statements comply
strictly with their obligation not to reproduce them and to return them as soon as they
are no longer required;

ORDERS the Prosecutor to comply
immediately with the obligation, provided for in Rule 66 of the Rules and repeated in the
Decision of 27 January 1997, to ensure that the statements be disclosed to the Defence.

1. Request of 12 May 1997, pp. 5 and 6.2.ibid p. 6.3.ibid p. 5.4. Request of 14 May 1997, p. 4.5. Response of the Defence, p. 5.6. Defence counsel statement at the hearing of 23 May 1997, p. 19 of the
French version of the provisional transcript.7.ibid p. 21.8. Defence Response of 16 May 1997, p. 7.9.ibid p. 7.10. Defence Response pp. 9,10.11. Article 22 of the Statute and Rule 75 of the Rules. 12. Decision on the Prosecutors Motion requesting Protective
Measures for Victims and Witnesses, 10 August 1995.13. Statement of the Defence counsels at the hearing of 23 May 1997,
French version of the provisional transcripts, pp. 17, 18, 26 and 27.14.ibid.15.ibid.